Polar Cones Pty Ltd v Randwick City Council [2021] NSWLEC 1640

Land and Environment Court New South Wales

Medium Neutral Citation: Polar Cones Pty Ltd v Randwick City Council [2021] NSWLEC 1640 Hearing dates: Conciliation conference on 11 and 18 October 2021 Date of orders: 22 October 2021 Decision date: 22 October 2021 Jurisdiction: Class 2 Before: Espinosa C Decision: The Court orders: (1) The Appeal is upheld. (2) Approval is granted for the use of Mobile Food Van (Ice Cream Van) – EDH60D and Back up van – CG52HY for mobile food vending in a public place, subject to the conditions of approval contained in 'Annexure A'. Catchwords: ACTIVITY APPEAL – mobile food van – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment (COVID-19 Development – Takeaway food and Beverages) Order 2020, cll 6, 7, 8 Land and Environment Court Act 1979, s 34 Local Government Act 1993, ss 68, 176 Category: Principal judgment Parties: Polar Cones Pty Ltd (Applicant) Randwick City Council (Respondent) Representation: Counsel: A Pearman (Applicant) C Rose (Solicitor) (Respondent)

Solicitors: Bongiorno Lawyers (Applicant) Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2021/228269 Publication restriction: No

Judgment 1. COMMISSIONER: This is a Class 2 Miscellaneous Appeal pursuant to s 176 of the Local Government Act 1993 (the LG Act) being an Appeal against the determination of an activity approval reference Mobile Food Van MFV01/2021 sought under s 68 of the LG Act seeking a licence to operate three Mobile Food Vending Vans (registration numbers EDH60D, CK12QI and CG52HY) at Bare Island (parked in a parking bay as close as possible to the entrance) and at Steps to the Beach parked in a parking bay next to the Council Vehicle Parking Only bay on weekdays 1 to 2 vans from 7 am to 7 pm and on weekends 2 vans from 7 am to 7 pm (the Proposed Activity). 2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 11 and 18 October 2021. I have presided over the conciliation conference. 3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting approval to the activity subject to conditions. 4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising the function under ss 68 and 176 of the LG Act to grant the activity approval. 5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be the terms of s 68 of the LG Act which requires prior approval to the carrying out of the Proposed Activity, being an activity under Part F item 7, and provides as follows (emphasis added): 68 What activities, generally, require the approval of the council? (1) A person may carry out an activity specified in the following Table only with the prior approval of the council, except in so far as this Act, the regulations or a local policy adopted under Part 3 allows the activity to be carried out without that approval. […] Table Approvals Part F Other activities 1 Operate a public car park 2 Operate a caravan park or camping ground 3 Operate a manufactured home estate 4 Install a domestic oil or solid fuel heating appliance, other than a portable appliance 5 Install or operate amusement devices 6 (Repealed) 7 Use a standing vehicle or any article for the purpose of selling any article in a public place 8, 9 (Repealed) 10 Carry out an activity prescribed by the regulations or an activity of a class or description prescribed by the regulations 1. The parties explained how the jurisdictional prerequisites have been satisfied in the context of the Ministerial Order Environmental Planning and Assessment (COVID-19 Development – Takeaway food and Beverages) Order 2020 (the Order) which commenced on 31 March 2020 as follows: 1. The subject application remains governed by s 68 of the LG Act (Chapter 7 Part 1). 2. The Order is directed to "existing premises" operating with consent (or authorised without the need for consent), cl 6. The Order permits continued operation in a take away capacity and also via the use of a mobile food and drink outlet, cl 7(1) during Covid, without the need to obtain further consent, provided certain conditions are met, cl 7(2). Clause 8 suspends regulatory instruments including Part 1 of Chapter 7 of the LG Act which governs activities requiring approval. 3. The subject application is not "existing uses" with ongoing consent. It is an application for an annual licence. The consent to operate is limited annually from June to June. 4. Further, if there were any doubt as to the applicability of the Order, the Order is valid only during the prescribed period which concludes on 31 March 2022. The Applicant is seeking a licence until 30 June 2022. 5. There is no jurisdictional impediment to making the orders sought. 1. I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. I accept and adopt the reasons given by the parties and am satisfied that there is no jurisdictional impediment to making the orders sought. 2. As the parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 3. The Court notes that the Respondent Council is, by 22 October 2021, to grant an approval for a "roaming" vehicle for which the conditions of approval will be the same as those conditions set out in Annexure A, with the exception of the: 1. registration details, 2. timeframe that the vehicles may stand in one place, which will be limited to one and a half hours, and 3. the areas excluded for operation will be in the suburb of Clovelly east of 379-401 Clovelly Road, Clovelly and South of 1583 Anzac Parade, La Perouse, NSW 2036. 1. The Court orders: 1. The Appeal is upheld. 2. Approval is granted for the use of Mobile Food Van (Ice Cream Van) – EDH60D and Back up van – CG52HY for mobile food vending in a public place, subject to the conditions of approval contained in 'Annexure A'.